The Optional Protocol to the United Nations Convention Against Torture (Edouard Delaplace)

The Optional Protocol to the United Nations Convention Against Torture

2nd May 2007

With your permission I should first of all like to express my warmest two-fold gratitude to FIACAT, both institutionally and personally.

First of all institutionally, I should like to thank you for having invited APT, which I represent, to this important seminar today.We have closely watched the process of consultation of the ACATs and we are particularly honoured to be associated with your discussion.

Still on the institutional front, I wish to take this opportunity to express my sincere appreciation to FIACAT for the wonderful cooperation which has developed between us over the years. I shall not dwell on the details of this cooperation, whether it be the implementation of the guidelines of Robben Island, the ratification of the Protocol or yet again the negotiations on the resolution on torture at the Commission of Human Rights, but I wish to underline how much we appreciate this cooperation.

And personally. I have always very much enjoyed working with FIACAT and its network. To see all these familiar faces yesterday on my arrival here, those of the Bujumbura 2006 Group, those of certain European ACATs and last but not least those with whom I work most closely (at least once a week on the telephone), to wit Marie-jo, Guillaume and Nathalie, to see you all here really warms my heart.

Having said that, and it was important to say that, I shall now turn to the question at hand. At the risk of appearing heretical, I would be tempted to reply “no”. Indeed, I do not think that OPCAT can really prevent these abuses linked to the fight against terrorism.

However, because I am an optimist by nature and because as Hubert Beuve-Marie said in a letter to Jean-Jacques Gautier, the founder of APT, it is in the depths of darkness that one must believe in light, I shall try to explain my position a little bit more clearly.

Let us say that no, OPCAT cannot prevent these abuses unless a certain number of conditions were to be met.

1 - OPCAT is not the right instrument for an effective means of preventing the abuses linked to the fight againts terrorism.

Basically I see two types of main reasons to back that position - structural on the one hand and economic on the other hand.

1.1 Structural reasons

Here too I would distinguish two elements: the question of cooperation first of all and then the effectiveness of the inspection mechanisms.

1.1.1 - Cooperation

The Protocol can only work in an environment where there is a political determination to prevent torture and to improve the detention conditions of persons deprived of their liberty.

That is why in our ratification campaign we only target those States where we believe that this determination exists and we sometimes try to assuage the fervour of some of our partners who invite all States to ratify.

The context of the abuses linked to the fight against terrorism is characterised by a lack of clarity and cooperation which is sometimes assumed. When you see for example how reluctant the European countries were to furnish information to the Council of Europe on their practice of diplomatic assurances you can only doubt their willingness to cooperate. In that particular context are certain countries really going to produce a complete list of all their detention centres? And act on the recommendations of the inspection bodies? I don’t think so.

1.1.2 - What effectiveness?

We must then look at the effectiveness of inspections at detention centres. Indeed, I do not believe that in itself a mechanism to inspect detention centres is capable of preventing torture and ill-treatment in absolute terms.

Now I am not saying that the preventive approach which APT has advocated for the last 30 years is not effective in the final analysis. What I am saying is that taken by itself a mechanism for inspections cannot prevent torture and ill-treatment in absolute terms.

1.2 - Economic reasons

Another series of reasons for my present doubts as to the effectiveness of the Protocol have to do with its youth. In fact the Protocol only came into force on 22 June 2006 and both international and national mechanisms are still in their infant stage.

1.2.1 - What about the Sub-Committee?

The 10 members of the Sub-Committee were elected on 18 December 2006 and held their first session from 18-23 February 2007. A second one will be held at the end of June and a third one in November.

The members who have been elected are all excellent, and that is a sufficiently rare event in the framework of the treaty bodies of the United Nations to be underlined. One might regret the considerable imbalances in terms of geography (6 Europeans and 4 Latin Americans) and gender (2 women and 8 men), but these members are absolutely committed.

However, this year the Sub-Committee is only planning two visits and will undertake five next year at best, which means that at most the 34 signatory States will only be inspected once every seven years…

Similarly the Secretariat is currently made up of only one person, a totally committed and highly experienced person, but you will understand that it is absolutely inadequate for the Sub-Committee to be able to implement properly its mandate to inspect and advise national mechanisms.

Under these circumstances, which are purely economic, you will see clearly that there is no chance of the Sub-Committee being sufficiently strong to stand up to this kind of context.

1.2.2 - What about the national prevention mechanisms?

To date only eight national prevention mechanisms (NPM) have been officially designated: Mali; the United Kingdom, Costa Rica, Slovenia, New Zealand, Poland, the Czech Republic and Estonia.

Some more will be added in the coming weeks as a certain number of States which are party to the Protocol are expected to designate their mechanism by 22 June 2007.

Be that as it may, the picture is not exactly satisfactory. To sum up we can say that there are three main problems:

Financial and human resources

The first problem has to do with financial and human resources. And don’t think that this is solely a problem for the countries of the south. At this stage in fact the German and Swiss projects have no permanent support staff for the planned inspection mechanisms. But these problems are obviously much more serious for the countries of the south. In Mali the permanent secretary of the Human Rights Commission who has been in his position for six months still has not been paid and the Commission budget for this year amounts to about €6000...

Similarly the question of human resources is acute. In Poland and Estonia, for example, the teams responsible for matters of persons deprived of their liberty in the ombudsman’s offices designated as NPMs have not been increased even though they have taken on new responsibilities.

Under these circumstances it is difficult to see how the NPMs could be as effective as desired in their job.

proficiency

The issue of the of the mechanism is equally burning. In our implementation campaign it became quite clear that certain States are trying to restrict the of their NPM. Various methods are being used to do this: weak legislative base (a decree rather than a constitutional law), members from certain ministeries (in Mali, for example), no budget of their own…

There again, if the NPMs are not sufficiently independent it is highly unlikely that they can oppose certain abuses linked to the fight against terrorism.

Expertise

And finally the third problem is that of the expertise of the national mechanisms. Inspecting prisons is not something that comes naturally, it has to be learned. The people appointed either as members or as staff must have certain professional qualifications and experience in particular fields (law, the prison system, the police, juvenile detention, medicine, psychiatry, etc) and must also possess certain personal qualities, such as empathy with persons deprived of their freedom.

Now sometimes these professional and personal qualities are present, but not always, and once again that risks limiting the effectiveness of the Protocol.

2 - The Protocol could be effective if …

Despite all I have said I have no wish to demoralise you and I think I should explain some nuances.

Indeed, as I said in my introduction, I believe it is possible for OPCAT to play a constructive part even under these circumstances, but for that to happen a certain number of conditions must be met first and foremost by the principal players in the implementation of the Protocol, namely the signatory States, the Office of the High Commissioner for Human Rights of the United Nations and civil society.

2.1 The will of the signatory States

More than any other international instrument to protect human rights, the Protocol depends on the cooperation of the signatory States. Without them the Protocol simply does not exist. It is with them that the Protocol takes on its full importance. More specifically the States must fulfil a certain number of conditions to ensure that the NPM is as effective as possible in the prevention of torture.

When the NPM is set up the authorities should propose inclusive and transparent consultation, that means they must ensure that everyone involved from the government and civil society must be consulted in order to agree on a solution. This way the NPM right from the very beginning will enjoy a certain credibility which will add more weight to its action. Many signatory States have understood that and it seldom happens that the governmental authorities completely obstruct such a process.

The States must then ensure that the national mechanism enjoys , human and financial resources and even the expertise necessary for effectively carrying out its mandate.

In the following implementation stage the States must not only accept possible criticism from the national mechanism or from the Sub-Committee but must also put their recommendations into practice.

At this stage not everything is obviously perfect but it is very encouraging to see that on the whole the States seem willing to date to play this central positive role which is put on them by the Protocol.

2.2 Mobilising the Office of the United Nations High Commissioner for Human Rights (OHCHR)

The Office of the High Commissioner of the United Nations is also a central figure in the effective implementation of the Protocol.

First of all in Geneva,

The Office of the High Commissioner must provide the Sub-Committee with the human and financial resources needed to accomplish its mission. That means at least four or five suitably qualified people working for the Sub-Committee.

It also means receiving the support of a certain number of additional experts which the Office of the High Commissioner must identify and use advisedly.

It means ensuring close coordination with the various branches and units within the Office of the High Commissioner.

And finally it means establishing and managing the Special Fund under Article 25 of the Protocol destined to help signatory States implement the recommendations of the Sub-Committee.

Then in the field it means:

shaking the missions in the signatory States into action and asking them to play an active role with regard to the national mechanism and preparation of the inspections of the Sub-Committee,

stimulating the various United Nations agencies particularly in the phase of implementing the recommendations.

It is a real change in thinking that we must inspire. The Office of the High Commissioner is not yet accustomed to playing such a pro-active role and the difficulties currently being experienced is proof of that. But at the same time the Office of the High Commissioner has tremendous potential and could soon be in a position to meet these conditions.

2.3 Stimulating civil society

Finally, and to wind up this part, none of this will be possible if we don’t manage to stimulate civil society.

Civil society must be involved in the creation stage because that has a considerable effect on the credibility and effectiveness of the mechanism created. It is the NGOs, the law courts, the families of prisoners, the chaplains, etc who know the situation of people deprived of their freedom, their needs and the existing mechanisms.

Then civil society must also finds its place in the implementation phase and that undoubtedly is one of the challenges facing us (when I say “us” I mean you the ACATs and we the APT and all other members of civil society).

How are we going to fit in with all these new bodies such as the Sub-Committee and the national mechanisms? How are we going to pressurise these mechanisms? How are we going to work with them?

For the time being there are no real answers to these questions because work has not really got under way, but we shall have to find these answers.

Conclusion

In conclusion I wish to stress an element which must not be overlooked and which I believe plays an essential part in the fight against abuses in the fight against terrorism, and that is the spoken word, opening a public forum for debating questions of torture, ill-treatment or deprivation of liberty. And in this the Protocol can also play its part.

Indeed the ratification and implementation of OPCAT provide a unique opportunity to debate these issues in the national context. And I don’t think that the ACATs present here with whom we have worked will contradict me.

Because of the need to create a national mechanism all the national forces have to carry out a check-up of the fight against torture and ask various questions on the practice of torture and ill-treatment:

What is the current legislation?

Does it conform to international/regional standards?

What is the state of collaboration with relevant international/regional mechanisms?

Who are the main forces in the fight against torture?

What inspection mechanisms exist?

Are they effective?

Debate on these issues will produce a new or fresh awareness of the demands of the fight against torture and thus the Protocol plays and will play an undeniable role in the fight against abuses linked to the fight against terrorism.